Senate Bill sb0822

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    Florida Senate - 2001                                   SB 822

    By Senator Dyer





    14-416-01

  1                      A bill to be entitled

  2         An act relating to government accountability

  3         and legal proceedings; amending s. 11.066,

  4         F.S.; providing that property of the state or a

  5         monetary recovery made on behalf of the state

  6         is not subject to a lien unless authorized by

  7         law; amending s. 112.3175, F.S.; providing that

  8         certain contracts executed in violation of part

  9         III of ch. 112, F.S., are presumed void or

10         voidable; amending s. 112.3185, F.S.;

11         prohibiting a state employee from holding

12         certain employment or contractual relationships

13         following resignation of such employment;

14         amending s. 287.058, F.S.; requiring that

15         certain state contracts be subject to

16         cancellation upon refusal by the contractor to

17         allow access to public records; amending s.

18         287.059, F.S.; providing additional

19         requirements for contracts for private attorney

20         services; providing requirements for

21         contingency fee contracts; providing

22         requirements if multiple law firms are parties

23         to a contract; providing requirements for

24         private attorneys with respect to maintaining

25         documents and records and making such documents

26         and records available for inspection; creating

27         s. 60.08, F.S.; providing for injunctions

28         without bond when sought by the state or its

29         agencies; providing for severability; amending

30         s. 45.062, F.S.; providing additional

31         requirements with respect to notification of

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  1         certain settlements or orders; providing that

  2         certain settlements or orders shall be

  3         contingent upon and subject to legislative

  4         appropriation or statutory amendment; providing

  5         for the disposition of funds; providing

  6         legislative intent; amending s. 216.023, F.S.;

  7         providing for an inventory of all litigation in

  8         which an agency is involved which may require

  9         additional appropriations to the agency or

10         amendments to the law under which the agency

11         operates as a part of legislative budget

12         requests; amending s. 284.385, F.S.; revising

13         provisions relating to the reporting and

14         handling of claims by the Department of

15         Insurance covered by the State Risk Management

16         Trust Fund; providing an effective date.

17

18  Be It Enacted by the Legislature of the State of Florida:

19

20         Section 1.  Subsection (5) is added to section 11.066,

21  Florida Statutes, to read:

22         11.066  Suits seeking monetary damages against the

23  state or its agencies; payment of judgments; appropriations

24  required.--

25         (5)  The property of the state, the property of any

26  state agency, or any monetary recovery made on behalf of the

27  state or any state agency is not subject to a lien of any

28  kind, and a person may not institute an action on any such

29  lien unless expressly authorized by law.

30         Section 2.  Section 112.3175, Florida Statutes, is

31  amended to read:

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  1         112.3175  Remedies; contracts voidable.--

  2         (1)  Any contract that which has been executed in

  3  violation of this part is voidable:

  4         (a)(1)  By any party to the contract.

  5         (b)(2)  In any circuit court, by any appropriate

  6  action, by:

  7         1.(a)  The commission.

  8         2.(b)  The Attorney General.

  9         3.(c)  Any citizen materially affected by the contract

10  and residing in the jurisdiction represented by the officer or

11  agency entering into such contract.

12         (2)  Any contract that has been executed in violation

13  of this part is presumed void with respect to any former

14  employee of a state agency and is voidable with respect to any

15  private-sector third party who employs or retains in any

16  capacity such former agency employee.

17         Section 3.  Subsection (3) of section 112.3185, Florida

18  Statutes, is amended to read:

19         112.3185  Contractual services.--

20         (3)  No agency employee shall, after retirement, or

21  termination, or resignation, have or hold any employment or

22  contractual relationship with any business entity other than

23  an agency in connection with any contract in which the agency

24  employee participated personally and substantially through

25  decision, approval, disapproval, recommendation, rendering of

26  advice, or investigation while an officer or employee.

27         Section 4.  Subsection (1) of section 287.058, Florida

28  Statutes, is amended to read:

29         287.058  Contract document.--

30         (1)  Every procurement of contractual services in

31  excess of the threshold amount provided in s. 287.017 for

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  1  CATEGORY TWO, except for the providing of health and mental

  2  health services or drugs in the examination, diagnosis, or

  3  treatment of sick or injured state employees or the providing

  4  of other benefits as required by the provisions of chapter

  5  440, shall be evidenced by a written agreement embodying all

  6  provisions and conditions of the procurement of such services,

  7  which provisions and conditions shall, where applicable,

  8  include, but shall not be limited to:

  9         (a)  A provision that bills for fees or other

10  compensation for services or expenses be submitted in detail

11  sufficient for a proper preaudit and postaudit thereof.

12         (b)  A provision that bills for any travel expenses be

13  submitted in accordance with s. 112.061.  A state agency may

14  establish rates lower than the maximum provided in s. 112.061.

15         (c)  A provision allowing unilateral cancellation by

16  the agency for refusal by the contractor to allow public

17  access to all documents, papers, letters, or other material

18  subject to the provisions of chapter 119 and made or received

19  by the contractor in conjunction with the contract, unless the

20  records are exempt from s. 119.07(1).

21         (d)  A provision dividing the contract into units of

22  deliverables, which shall include, but not be limited to,

23  reports, findings, and drafts, that must be received and

24  accepted in writing by the contract manager prior to payment.

25         (e)  A provision specifying the criteria and the final

26  date by which such criteria must be met for completion of the

27  contract.

28         (f)  A provision specifying that the contract may be

29  renewed on a yearly basis for a period of up to 2 years after

30  the initial contract or for a period no longer than the term

31  of the original contract, whichever period is longer,

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  1  specifying the terms under which the cost may change as

  2  determined in the invitation to bid or request for proposals,

  3  and specifying that renewals shall be contingent upon

  4  satisfactory performance evaluations by the agency and subject

  5  to the availability of funds.

  6

  7  In lieu of a written agreement, the department may authorize

  8  the use of a purchase order for classes of contractual

  9  services, provided the provisions of paragraphs (a)-(f) are

10  included in the purchase order, invitation to bid, or request

11  for proposals.  The purchase order shall include an adequate

12  description of the services, the contract period, and the

13  method of payment. In lieu of printing the provisions of

14  paragraphs (a)-(f) in the contract document or purchase order,

15  agencies may incorporate the requirements of paragraphs

16  (a)-(f) by reference.

17         Section 5.  Section 287.059, Florida Statutes, is

18  amended to read:

19         287.059  Private attorney services.--

20         (1)  For purposes of this section, the term "agency" or

21  "state agency" includes state officers, departments, boards,

22  commissions, divisions, bureaus, councils, and units of

23  organization, however designated, of the executive branch of

24  state government, community and junior colleges, and

25  multicounty special districts exclusive of those created by

26  interlocal agreement or which have elected governing boards.

27         (2)  No agency shall contract for private attorney

28  services without the prior written approval of the Attorney

29  General, except that such written approval is not required for

30  private attorney services:

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  1         (a)  Procured by the Executive Office of the Governor

  2  or any department under the exclusive jurisdiction of a single

  3  Cabinet officer.

  4         (b)  Provided by legal services organizations to

  5  indigent clients.

  6         (c)  Necessary to represent the state in litigation

  7  involving the State Risk Management Trust Fund pursuant to

  8  part II of chapter 284.

  9         (d)  Procured by the Board of Regents and the

10  universities of the State University System.

11         (e)  Procured by community and junior colleges and

12  multicounty special districts.

13         (f)  Procured by the Board of Trustees for the Florida

14  School for the Deaf and the Blind.

15         (3)  An agency requesting approval for the use of

16  private attorney services shall first offer to contract with

17  the Department of Legal Affairs for such attorney services at

18  a cost pursuant to mutual agreement. The Attorney General

19  shall decide on a case-by-case basis to accept or decline to

20  provide such attorney services as staffing, expertise, or

21  other legal or economic considerations warrant.  If the

22  Attorney General declines to provide the requested attorney

23  services, the Attorney General's written approval shall

24  include a statement that the private attorney services

25  requested cannot be provided by the office of the Attorney

26  General or that such private attorney services are

27  cost-effective in the opinion of the Attorney General.  The

28  Attorney General shall not consider political affiliation in

29  making such decision.  The office of the Attorney General

30  shall respond to the request of an agency for prior written

31  approval within 10 working days after receiving such request.

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  1  The Attorney General may request additional information

  2  necessary for evaluation of a request.  The Attorney General

  3  shall respond to the request within 10 working days after

  4  receipt of the requested information. Those agencies exempt

  5  from written approval from the Attorney General, as described

  6  in paragraphs (2)(a)-(f), may contract with the Department of

  7  Legal Affairs for attorney services.  The Attorney General

  8  shall determine on a case-by-case basis whether to provide

  9  such attorney services as staffing, expertise, or other legal

10  considerations warrant.  The Attorney General may adopt, by

11  rule, a form on which agencies requesting written approval for

12  private attorney services shall provide information

13  concerning:

14         (a)  The nature of the attorney services to be provided

15  and the issues involved.

16         (b)  The need for use of private attorneys, rather than

17  agency staff attorneys, utilizing the criteria provided in

18  subsection (9) (8).

19         (c)  The criteria by which the agency selected the

20  private attorney or law firm it proposes to employ, utilizing

21  the criteria provided in subsection (10) (9).

22         (d)  Competitive fees for similar attorney services.

23         (e)  The agency's analysis estimating the number of

24  hours for attorney services, the costs, the total contract

25  amount, and, when appropriate, a risk or cost-benefit

26  analysis.

27         (f)  Which partners, associates, paralegals, research

28  associates, or other personnel will be used, and how their

29  time will be billed to the agency.

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  1         (g)  Any other information which the Attorney General

  2  deems appropriate for the proper evaluation of the need for

  3  such private attorney services.

  4         (4)  When written approval has been received from the

  5  Attorney General, the general counsel for the agency shall

  6  review the form and legality of the contract for private

  7  attorney services and shall indicate his or her approval by

  8  signing the contract written final approval must be obtained

  9  from the agency head, or designee of the agency head, prior to

10  the contracting for private attorney services. After a

11  contract is approved by the general counsel, the agency head

12  shall sign and maintain custody of the contract.

13         (5)  The agency head or a designee shall give written

14  approval prior to contracting for private attorney services

15  for all agencies exempt from written approval of the Attorney

16  General as described in paragraphs (2)(a)-(f).

17         (6)  The Attorney General shall, by rule, adopt a

18  standard fee schedule for private attorney services using

19  hourly rates or an alternative billing methodology. The

20  Attorney General shall take into consideration the following

21  factors:

22         (a)  Type of controversy involved and complexity of the

23  legal services needed.

24         (b)  Geographic area where the attorney services are to

25  be provided.

26         (c)  Novelty of the legal questions involved.

27         (d)  Amount of experience desired for the particular

28  kind of attorney services to be provided.

29         (e)  Other factors deemed appropriate by the Attorney

30  General.

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  1         (f)  The most cost-effective or appropriate billing

  2  methodology.

  3         (7)(a)  A contingency fee contract must be commercially

  4  reasonable. As used in this subsection, the term "commercially

  5  reasonable" means the amount permissible pursuant to Rule

  6  4-1.5 of the Rules Regulating The Florida Bar and case law

  7  interpreting that rule.

  8         (b)  If the amount of the fee is in dispute, the

  9  counsel retained by the state shall participate in mandatory,

10  binding arbitration. Payment of all attorney's fees is subject

11  to appropriation. Attorney's fees shall be forfeited if,

12  during the pendency of the case, the counsel retained by the

13  state takes a public position that is adverse to the state's

14  litigation or settlement posture.

15         (8)(7)  All agencies, when contracting for private

16  attorney services, must use the standard fee schedule for

17  private attorney services as established pursuant to this

18  section unless the head of the agency, or his or her designee,

19  waives use of the schedule and sets forth the reasons for

20  deviating from the schedule in writing to the Attorney

21  General.  Such waiver must demonstrate necessity based upon

22  criteria for deviation from the schedule which the Attorney

23  General shall establish by rule.

24         (9)(8)  The Attorney General shall develop guidelines

25  that may be used by agencies to determine when it is necessary

26  and appropriate to seek private attorney services in lieu of

27  staff attorney services.

28         (10)(9)  Agencies are encouraged to use the following

29  criteria when selecting outside firms for attorney services:

30         (a)  The magnitude or complexity of the case.

31         (b)  The firm's ratings and certifications.

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  1         (c)  The firm's minority status.

  2         (d)  The firm's physical proximity to the case and the

  3  agency.

  4         (e)  The firm's prior experience with the agency.

  5         (f)  The firm's prior experience with similar cases or

  6  issues.

  7         (g)  The firm's billing methodology and proposed rate.

  8         (h)  The firm's current or past adversarial position,

  9  or conflict of interest, with the agency.

10         (i)  The firm's willingness to use resources of the

11  agency to minimize costs.

12         (11)(10)  The Attorney General shall develop a standard

13  addendum to every contract for attorney services that must be

14  used by all agencies, unless waived by the Attorney General,

15  describing in detail what is expected of both the contracted

16  private attorney and the contracting agency. The addendum must

17  address the internal system of governance if multiple law

18  firms are parties to the contract and must, at a minimum,

19  require that each firm identify one member who is authorized

20  to legally bind the firm.

21         (12)(11)  Contracts for attorney services shall be

22  originally executed for 1 year only, except that multiyear

23  contracts may be entered into provided they are subject to

24  annual appropriations and annual written approval from the

25  Attorney General as described in subsection (3).  Any

26  amendments to extend the contract period or increase the

27  billing rate or overall contract amount shall be considered

28  new contracts for purposes of the written approval process

29  described in subsection (3).

30         (13)(12)  The office of the Attorney General shall

31  periodically prepare and distribute to agencies a roster by

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  1  geographic location of private attorneys under contract with

  2  agencies, their fees, and primary area of legal

  3  specialization.

  4         (14)(13)  The office of the Attorney General is

  5  authorized to competitively bid and contract with one or more

  6  court reporting services, on a circuitwide basis, on behalf of

  7  all state agencies in accordance with s. 287.057(2). The

  8  office of the Attorney General shall develop requests for

  9  proposal for court reporter services in consultation with the

10  Florida Court Reporters Association.  All agencies shall

11  utilize the contracts for court reporting services entered

12  into by the Office of the Attorney General where in force,

13  unless otherwise ordered by a court or unless an agency has a

14  contract for court reporting services executed prior to May 5,

15  1993.

16         (15)(14)  The Attorney General's office may, by rule,

17  adopt standard fee schedules for court reporting services for

18  each judicial circuit in consultation with the Florida Court

19  Reporters Association.  Agencies, when contracting for court

20  reporting services, must use the standard fee schedule for

21  court reporting services established pursuant to this section,

22  provided no state contract is applicable or unless the head of

23  the agency or his or her designee waives use of the schedule

24  and sets forth the reasons for deviating from the schedule in

25  writing to the Attorney General. Such waiver must demonstrate

26  necessity based upon criteria for deviation from the schedule

27  which the Attorney General shall establish by rule.  Any

28  proposed fee schedule under this section shall be submitted to

29  the Governor, the Speaker of the House of Representatives, the

30  President of the Senate, and the Chief Justice of the Florida

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  1  Supreme Court at least 60 days prior to publication of the

  2  notice to adopt the rule.

  3         (16)  Each private attorney who is under contract to

  4  provide attorney services for the state or a state agency

  5  shall, from the inception of the contractual relationship

  6  until at least 4 years after the contract expires or

  7  terminates, maintain detailed current records, including

  8  documentation of all expenses, disbursements, charges,

  9  credits, underlying receipts and invoices, and other financial

10  transactions that concern the provision of such attorney

11  services. The private attorney shall make all such records

12  available for inspection and copying upon request in

13  accordance with chapter 119.

14         Section 6.  Section 60.08, Florida Statutes, is created

15  to read:

16         60.08  Injunctions sought by the state pursuant to

17  statute shall issue without bond.--In any action for

18  injunctive relief sought by the state or one of its agencies

19  as provided in ss. 501.207(1)(b), 542.23, and 895.05(5), any

20  injunction sought shall issue without bond or surety and no

21  bond or surety shall be required during the term of the

22  injunction.

23         Section 7.  If any provision of this act or the

24  application thereof to any person or circumstance is held

25  invalid, the invalidity does not affect other provisions or

26  applications of the act which can be given effect without the

27  invalid provision or application, and to this end the

28  provisions of this act are declared severable.

29         Section 8.  Section 45.062, Florida Statutes, is

30  amended to read:

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  1         45.062  Settlements, conditions, or orders when an

  2  agency of the executive branch is a party.--

  3         (1)  In any civil action in which a state executive

  4  branch agency or officer is a party in state or federal court,

  5  the officer, agent, official, or attorney who represents or is

  6  acting on behalf of such agency or officer may not settle such

  7  action, consent to any condition, or agree to any order in

  8  connection therewith, if the settlement, condition, or order

  9  requires the expenditure of or the obligation to expend any

10  state funds or other state resources, or the establishment of

11  any new program, unless:

12         (a)  The expenditure is provided for by an existing

13  appropriation or program established by law; and

14         (b)  Prior written notification is given within 5

15  business days of the date the settlement or presettlement

16  agreement or order is to be made final to the President of the

17  Senate, the Speaker of the House of Representatives, the

18  Senate and House minority leaders, and the Attorney General.

19  Such notification shall specify how the agency involved will

20  address the costs in future years within the limits of current

21  appropriations.

22         (2)  The state executive branch agency or officer shall

23  negotiate a closure date as soon as possible for the civil

24  action.

25         (3)  The state executive branch agency or officer may

26  not pledge any current or future action of another branch of

27  state government as a condition for settling the civil action.

28         (4)  Any settlement that commits the state to spending

29  in excess of current appropriations or to policy changes

30  inconsistent with current state law shall be contingent upon

31  and subject to legislative appropriation or statutory

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  1  amendment. The state agency or officer may agree to use all

  2  efforts to procure legislative funding or statutory amendment.

  3         (5)  When a state agency or officer settles an action

  4  in which the state will receive moneys, the funds will be

  5  placed unobligated in the General Revenue Fund or in the trust

  6  fund that is associated with the agency's or official's

  7  authority to pursue the legal action.

  8         (6)  State agencies and officers shall report to each

  9  substantive and fiscal committee of the Legislature having

10  jurisdiction over the reporting agency on all potential

11  settlements that may commit the state to:

12         (a)  Spend in excess of current appropriations, or

13         (b)  Policy changes inconsistent with current state

14  law.

15

16  The state agency or officer shall provide periodic updates to

17  the appropriate legislative committees on these issues during

18  the settlement process.

19         Section 9.  Subsection (13) is added to section

20  216.023, Florida Statutes, to read:

21         216.023  Legislative budget requests to be furnished by

22  agencies.--

23         (13)  As a part of the legislative budget request, the

24  head of each state agency shall include an inventory of all

25  litigation in which the agency is involved which may require

26  additional appropriations to the agency or amendments to the

27  law under which the agency operates.  No later than March 1

28  following the submission of the legislative budget request,

29  the head of the state agency shall provide an update of any

30  additions or changes to the inventory. Such inventory shall

31  include:

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  1         (a)  The names of the parties.

  2         (b)  The court with jurisdiction.

  3         (c)  A summary of the complaint.

  4         (d)  The amount of the claim.

  5         (e)  The specific laws challenged.

  6         (f)  The status of the case.

  7         Section 10.  Section 284.385, Florida Statutes, is

  8  amended to read:

  9         284.385  Reporting and handling of claims.--All

10  departments covered by the State Risk Management Trust Fund

11  under this part shall immediately report all known or

12  potential claims to the Department of Insurance for handling,

13  except employment complaints which have not been filed with

14  the Florida Human Relations Commission, Equal Employment

15  Opportunity Commission, or any similar agency. When deemed

16  necessary, the Department of Insurance shall assign or

17  reassign the claim to counsel.  The assigned counsel shall

18  report regularly to the Department of Insurance and to the

19  covered department on the status of any such claims or

20  litigation as required by the Department of Insurance.  No

21  such claim shall be compromised or settled for monetary

22  compensation without the prior approval of the Department of

23  Insurance and prior notification to the covered department.

24  All departments shall cooperate with the Department of

25  Insurance in its handling of claims.  The Department of

26  Insurance, the Department of Management Services, and the

27  Department of Banking and Finance, with the cooperation of the

28  state attorneys and the clerks of the courts, shall develop a

29  system to coordinate the exchange of information concerning

30  claims for and against the state, its agencies, and its

31  subdivisions, to assist in collection of amounts due to them.

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  1  The covered department shall have the responsibility for the

  2  settlement of any claim for injunctive or affirmative relief

  3  under 42 U.S.C. s. 1983 or similar federal or state statutes.

  4  The payment of a settlement or judgment for any claim covered

  5  and reported under this part shall be made only from the State

  6  Risk Management Trust Fund.

  7         Section 11.  This act shall take effect July 1, 2001.

  8

  9            *****************************************

10                          SENATE SUMMARY

11    Prohibits the placement of a lien upon state property or
      a monetary recovery made on the state's behalf unless
12    authorized by law. Provides that a contract executed in
      violation of part III of ch. 112, F.S., is presumed void.
13    Prohibits a state employee from entering into certain
      employment or contractual relationships following the
14    resignation of state employment. Provides that certain
      state contracts are subject to cancellation upon refusal
15    by the contractor to allow access to public records.
      Provides limitations on contingency fee contracts for
16    private attorney services. Requires that a private
      attorney who contracts with the state maintain documents
17    and records and make such documents and records available
      for inspection. Provides that certain statutory
18    injunctions sought by the state be issued without bond.
      Requires additional information to be furnished with
19    respect to settlements, conditions, or orders when an
      executive agency is a party. Requires additional
20    information to be furnished in legislative budget
      requests. Requires additional notice to be given with
21    respect to claims under the State Risk Management Trust
      Fund.  (See bill for details.)
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